PROPOSED FEDERAL MARRIAGE AMENDMENT (FMA) TO THE U.S. CONSTITUTION

ALTERNATIVE WORDINGS WRITTEN DURING 2003 & 2004

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Conflict over the wording of the Federal Marriage Amendment:

Alan Cooperman of the Washington Post wrote in 2003-NOV-29: "A broad array
of religious groups and conservative political activists has united behind the
idea of a constitutional amendment against gay marriage. But the fledgling
coalition is deeply divided about what, exactly, the amendment should say."

Different approaches used by various advocacy groups:

When conservative Christian advocacy groups attempt to change laws, they often
take a different approaches than do pro-choice, gay-positive, and other groups. For example:

The eventual goal of gay/lesbian/bisexual/transsexual groups is to
change the North American culture so that the public accepts homosexuality and bisexuality
as two sexual orientations which are normal, natural, and morally
neutral for a minority of adults. They have often worked towards this
target by seeking a multitude of tiny, incremental changes to legislation
at the federal, state, and local levels. They are willing to commit
major resources into winning
small battles. Two examples are:

Promoting health insurance within a single company to cover the same-sex
partners and children of employees, or

Promoting a same-sex partner registry in a city or state, even though it
gives few benefits.

Religious and social conservatives have often taken a very different
approach. They prefer legislation that will immediately fulfill all of their wants
and desires. The bills that they initiate often turn out to be
declared unconstitutional by the courts. Some laws only last for a few
hours before a court issues a
temporary injunction to prevent them from being applied. But they
will meet all of components of the groups' wish list. Two
examples are:

In their promotion of legislation at the state and federal level
to criminalize D&X abortions (a.k.a. Partial Birth Abortions) they
crafted bills so vague that they could criminalize a wide range of
abortions. They could be interpreted as banning abortions in all
three trimesters. The laws were clearly unconstitutional because they
violated the Roe v. Wade decision of the U.S. Supreme Court which
ruled that states could not significantly impede women from seeking
early abortions. They also lacked adequate health clauses to protect
the woman from serious, disabling, injuries.

In their promotion of legislation to prohibit nudity in strip
joints, they have made the legislation so general that it would also
criminalize family naturist resorts.

This difference in approach by many conservative Christian groups caused
division over the Federal Marriage Amendment (FMA):

Some within the community wanted a narrowly focused bill that had a good chance of being passed by the
House, Senate and state legislatures.

Others wanted a generally
worded amendment that would grant all of their wants, but which would have
much less chance of being passed.

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Conflicting goals:

What Alan Cooperman referred to as "the fledgling coalition"
among religious conservatives was
divided over the wording and scope of the Federal Marriage Amendment:

Some religious conservatives have pressed for an amendment that
would simply freeze the status-quo as it existed in mid-2003. This would
prevent states from granting same-sex couples the right to marry.
However, it would allow states to create the type of
civil union found in Vermont and the type of
domestic partnerships approved by the
California legislature.

Others would prefer an amendment that would turn back the clock to
1999, and
disallow all state-created civil unions and domestic partnerships. This would strip any rights
that registered same-sex couples and their children currently have.

Still others appear to prefer an amendment that would remove rights
from both registered same-sex couples and those opposite-sex, heterosexual
couples who are living common-law. Only opposite-sex, married couples
and their children would receive any recognition and benefits.

Glenn T. Stanton is a senior analyst at the Fundamentalist Christian
group "Focus on the Family." They and the Family Research Council are
probably the two most active groups fighting equal treatment of same-sex couples. He described the
conflict as being between "purity" and "pragmatism." He said:
"Do we go for everything that we want, or take the best we think we can
get?"

The stakes are high. In order to amend the U.S. Constitution, approval
must be given by:

Sixty-seven (66%) out of
100 Senators,

Two thirds of the membership of the House of Representatives, and

Thirty-eight states (75%) who must ratify the amendment.

If a proposed amendment does not meet one of these hurdles, it is dead.
The he process is intended to be difficult, to prevent the U.S. Constitution
from being easily changed on a whim.

2003 activity: three proposed FMA wordings:

By late 2003, at least three proposed amendments were circulating in
Washington:

Original amendment: The text with the greatest political
support was crafted by the Alliance for Marriage, with the
backing of the Roman Catholic Church, many black Protestant
denominations and certain Jewish and Muslim traditions. It was
introduced to the
House of Representatives as House Joint Resolution 56 on 2002-MAY-15.
It stated:

"Marriage in the United States shall consist
only of the union of a man and a woman. Neither this Constitution nor
the constitution of any State, nor state or federal law, shall be
construed to require that marital status or the legal incidents
thereof be conferred upon unmarried couples or groups." 2

An identically worded resolution was
introduced in the Senate on 2003-NOV-25 by Wayne Allard (R-CO), Jeff Sessions (R-AL)
and Sam Brownback (R-KS).

Revised amendment: On 2004-MAR-23, thesponsors of the Federal Marriage Amendment,Senator Wayne Allard (R-CO)
and Representative Marilyn Musgrave (R-CO) announced that they are rewording the
bill. They
explained that the changes are purely "technical" and said that the
intent of the bill is unchanged: to prohibit same-sex marriages and
prevent "activist judges" from requiring states to create civil unions.
The new wording would allow state legislatures to create and continue civil unions,
domestic partnerships, and common-law relationships
which provide at least some of the state benefits that opposite-sex
married couples automatically receive.

The first sentence in the new bill remains unchanged.

The second sentence is changed from:

"Neither this constitution or the constitution of any state,
nor state or federal law, shall be construed to require that
marital status or the legal incidents thereof be conferred upon
unmarried couples or groups."

TO

"Neither this Constitution, nor the constitution of any State,
shall be construed to require that marriage or the legal
incidents thereof be conferred upon any union other than the union of
a man and a woman."

(Emphasis ours).

The proposed wording would leave state and federal legislatures with
the power to create civil unions and domestic partnerships. The states
could continue to
grant benefits to opposite-sex common law couples and their children.
The House version of the amendment bill is HJR 56; an identical Senate
bill is SJR 30. A vote is expected in
mid-2004-JUL.

A third proposed amendment: This was crafted on 2003-OCT-15 at a meeting
of the Arlington Group which includes the leaders of most
of the largest Fundamentalist Christian para-church groups in the U.S.:
American Values, Concerned Women for America, Empower America, Family
Research Council, Focus on the Family, and Prison
Fellowship. They unanimously agreed to promote adding a third clause to the
wording of the original amendment. It would say:

"Neither the federal government nor any state shall predicate
benefits, privileges, rights or immunities on the existence,
recognition or presumption of non-marital sexual relationships."

According to Washington Post reporter Cooperman, Chuck Colson said that this third clause would
prevent the creating of any form of "substitute marriage."
Colson allegedly said that state legislatures still could establish civil unions, but only if they
conferred the same benefits on "any two people who live together
[such as]...an unmarried heterosexual couple or two old spinsters."
Dale Carpenter, a gay male, a Republican, and a professor at the
University of Minnesota said that trying to prevent state
legislatures from granting benefits based on a sexual relationship might
not work. For example, the civil union legislation in Vermont does not
require same-sex couples to state that they are involved in a sexual
relationship. Carpenter said: "This third sentence doesn’t really
accomplish anything, except to expose the extent to which some religious
conservatives are fixated on gay sex."

Maggie Gallagher, president of the conservative group Institute
for Marriage and Public Policy opposes this additional sentence. She
regards civil unions to be an "unwise step." But she feels that
allowing same-sex marriage is far worse. She said that this "...is
why I cannot join any coalition willing to fight only for the whole load
but certain to go down to 'noble" defeat."

Colson is quoted as saying that the Arlington Group fears that an
amendment that protects marriage "in name only" while allowing
near marriage in the form of civil unions would not energize sufficient
Fundamentalist and other Evangelical Christian support to see the
amendment clear Congress and obtain ratification by 38 states.

This proposed amendment has not been introduced to Congress.

Media coverage:

There appear to be gaps in the coverage of the FMA by the media:

Most of the couples who would have their rights and benefits stripped
away by some of the proposed amendment wordings are opposite-sex couples living
common-law. However, the media strangely seems to have concentrated its
coverage almost entirely on the loss of same-sex couples.

Most articles in the media seem to overlook the most vulnerable people who would be adversely affected by some of the proposed wordings: the
children of the same-sex and opposite-sex couples.

References:

To see a copy of the bills, go to Thomas: Legislative Information on the Internet at
http://thomas.loc.gov and enter H.J. Res. 56
for the House bill in the Bill Number
box and click on Search. Enter S.J. Res 30 for the Senate
version.